Kavanaugh, What Is The Likelihood Of His Approval To The U.S. Supreme Court?

Kavanaugh, What Is The Likelihood Of His Approval To The U.S. Supreme Court: In today’s program, Mat Staver will be with us from Liberty Counsel to talk about Judge Kavanaugh being appointed to the U.S. Supreme Court. Mat will discuss with us what kind of justice Kavanaugh will be, what we can expect to get from him, and the likelihood of whether or not he’ll be approved. This nomination could potentially change the court! Tune in now to learn more!

Transcription note: As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.

Faith And The Culture

Rick:

Welcome to the intersection of faith and the culture. This is WallBuilders Live! Where we’re talking about today’s hottest topics on policy, faith, and the culture, all of it from a Biblical, historical, and Constitutional perspective.

We’re here with David Barton, America’s premier historian and the founder of WallBuilders. Also, Tim Barton, national speaker, pastor, and president of WallBuilders. And my name is Rick Green, I’m a former Texas state legislator, national speaker, and author.

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And you can also get links to our previous programs over the last few months there in the archives section. Then also visit WallBuilders.com our main website. With a lot of other great information. All kinds of tools you can download.

All kinds of resources for your family. For your Sunday school, for your local schools. Get that education. And make sure that you’re getting inspired and equipped to be able to help save our Constitutional Republic.

What To Expect From Judge Kavanaugh

Later in the program, Matt Staver will be with us from Liberty Counsel. To talk about Judge Kavanaugh being appointed to the U.S. Supreme Court. What the likelihood is of approval.

Also, just a little bit of a breakdown on what he’s like as a judge. What we should expect. And how it will potentially change the court.

Right now we’re here with David and Tim Barton. We want to get to you guys. First, a comment on Kavanaugh.

Were you surprised that this was the nominee? I mean what did you expect? Who are you rooting for? Did you have the list out and play odds with each other? Going ok- I think it’s this guy. What were you guys doing whenever you knew there was about to be a nominee?

David:

Well it’s interesting. And by the way let me just say this has been a really interesting subject for listeners. We’re getting a lot of emails saying, “Would you do some more programs on Kavanaugh?

So we’ve already done a few. And each time we look from a different angle, different perspective. This time we’re looking from the eyes of someone who is actually arguing cases in front of guys like Kavanaugh.

So yeah, we definitely had some some inside bets on who it was going to be. And what was going to happen.

Tim:

And Kavanaugh was one of ours. So just to be clear. No, this was not the guy necessarily we saw coming now.

Now part of the reason was because when he got narrowed down to a list. Is this Trump’s real list? Or is Trump leaking this to maybe mislead people? To keep things close to the vest and surprise people when it comes out?

Although Kavanaugh was somebody suspected to be one of the high possibilities. He wasn’t really the first one that we thought of. Actually, we have several friends who are attorneys. Dad, as you mentioned do a lot of litigation even at the U.S. Supreme Court.

And Kavanaugh was not the guy they initially thought either. But looking at him it’s very interesting seeing some of what he’s done. As you mentioned, we’ve talked about some of this on WallBuilders Live before and some of his positions.

And certainly people are going through all of his couple hundred decisions now. With this fine tooth comb. Trying to draw any evidence conclusion they can.

That’s why we’re having Matt Staver from Liberty Counsel on today. To give us some insight into maybe what he sees from certainly a legal perspective. That’s been in front of the Supreme Court. That’s argued those cases that know what those those people are thinking quite often.

But Rick, to your point. No, this was not the guy we initially thought was going to be the pick. Although it looks like he might end up being a good pick.

Some of that’s yet to be determined. But there’s enough to give us confidence that at least he’s not a bad pick.

Kavanaugh Always In The Top Picks

David:

Let me kind of explain the process. Our contacts in the White House and up in that area. When this thing started there were about 25 names on the list for Supreme Court nominee. Then they got it down to seven, then five, and then three.

All along the way Kavanaugh kept being on the list. He was on the list of 25. Then he was on the list of seven then the list of five. And then what we were told was a list of three. He was in that.

So at that point you started to have all of these outside groups weigh in. Well Federalist Society weighed in for Kavanaugh. And said he’s the guy. He is the one you have to have.

A lot of the pro-life groups weighed in. And said no, we want Amy Barrett. She’s the one. So it was going back and forth between these three.

And so there were definite supporters for Kavanagh. Definite supporters for the others. It’s interesting the best way I can liken this is the first round of some sports draft.

Whether it is NFL, whether it is soccer, whether it is hockey, whether it is basketball or baseball. Your top three picks.

Now you watch fans react. And fans are going to have a definite reaction. Oh, we should of got the number two guy not the number one. We…

Any Of The Top Three Would Have Been Good Options

Listen, those top three picks are all really good. You’re arguing over 98.7 versus 97.6. I mean you’re arguing over small percentage points of how good they are.

So the fact that Kavanaugh made that list of the final three. The fact that some of the Christian groups were preferring Amy Barrett. Doesn’t mean that Kavanaugh was bad.

Because again those top three guys in any pro pick. And that’s what we had here. They’re going to all be really good.

And so that really is the right way to look at Kavanaugh. He was seen as really good in certain areas.

Other people said, well he’s not going to do a full frontal assault to knock out Roe v. Wade. He’s going to whittle away at it on the edges. Which I think he will. I think he will say, look the Constitution doesn’t give this authority.

Where I think Amy Barrett might have said, hey this should never happen. It is raw judicial activism. We’re turning everything over.

But that person probably was not going to get confirmed to the Supreme Court before this election. So Kavanaugh, for I think strategic reasons. Is more likely to be confirmed than any of the three that were there. And I think that he’s also going to be a very strong pick.

Rick:

Yeah, I had the exact same experience as you guys. I mean he was not the pick for me. I was rooting for a couple of the other folks. But didn’t know much about him.

And actually, at first when they said his name. I was even a little bit disappointed. Because he wasn’t the one I was actually rooting for.

But all I could think was I am so glad that it’s not Hillary Clinton at the podium naming her nominee. Right? I mean how anybody from Trump’s list would have been a thousand times better than anybody from any list that she would have had from a left wing philosophy.

So I was happy that it was Trump. I knew that it was gonna be a good justice. It just wasn’t one of the two or three that I was really rooting for.

But then we started learning more and more. In fact let’s just do that with Matt Staver. When we come back from the break find out what he thinks going forward. Then we’ll come back with David and Tim and get their comments on that. Stay with us folks you’re listening to WallBuilders Live!

Avalon Project

Tim:

Hey, guys, this is Tim Barton with WallBuilders. I know you hear my dad and Rick talk a lot about our Founding Fathers about the original intent of our nation, a constitutional heritage that we have. And really we’ve seen how far we slipped away from that. And I know a lot of us as we hear my dad and Rick talk think, “I wish there was a place that I could go where I could see these documents and I could read and learn about the Founding Fathers firsthand. See the things they did.”

I want to give you some websites today that can help you accomplish that very thing. If you get online you can go to places like Library of Congress and you can look under their century of lawmaking or historical documents. You can go to the Avalon Project, to the Founders Constitution, Google Books, or even the internet archives.

Or you can just go to WallBuilders.com. We have a section for our WallBuilders Library. And under that section we have different subgroups for historical documents, historical writings, even a place where you can get helpful links to find out more information about other websites. Where you can do research for yourself and find the truth for yourself. Friends, this is the time that we need to know who we are and where we came from. WallBuilders.com is a great place to go.

Matt Staver Joins Us Live!

Rick:

Welcome back. Thanks for being with us here on WallBuilders Live! Matt Staver is back with us from Liberty Counsel. Matt always good to have you on brother.

Matt:

Good to be with you Rick.

Rick:

Hey, man, you obviously have argued before the Supreme Court. You had tons of cases watching these federal judges all across the country. I really wanted our audience to get your feedback and thoughts on Kavanaugh as President Trump’s pick for the U.S. Supreme Court. Both on what you think of him as a justice, what you think we will get from him, and what you think about the process and whether or not he’ll be approved.

Matt:

Well, first of all, I think he’s eminently qualified to be a Supreme Court justice. Secondly, the real question is, what is his judicial philosophy? That’s a big issue.

He stated his philosophy when he mentioned during the press conference on his nomination that his judicial philosophy is very simple, that a judge should interpret, not make the law. That’s straightforward.

When you go back and look at what he said, it’s very consistent with that short statement. In fact, in 2017 during a Constitution Day speech. He gave a detailed explanation of judicial philosophy.

He said that his judicial hero is former Chief Justice William Rehnquist. Why is that? Because Rehnquist tried to bring a runaway Supreme Court back in line with a court of limited authority. That interprets the law not make the law. Rehnquist was very specific about having three distinct branches of government. And that judges and certainly the Supreme Court should not interfere with or intrude on the legislative or executive branches. That’s the philosophy that Kavanaugh holds.

And it’s very clear as he articulated it in terms of his position. Even on the issue of abortion, he speaks about Rehnquist.

How he felt that abortion was not part of the constitutional text. Certainly not part of our judicial and historical history in America. And consequently it would not be a so-called constitutional right. So I think we can be very comfortable with his judicial philosophy.

What Will Happen During The Nomination Process

Then finally, what’s going to happen during the nomination process? Already the Senate has taken an unexpected two week recess. Perhaps, that is because some people wanted to go back home for the primary season.

Perhaps, that’s the mid term. I don’t know. Perhaps that’s so much volume to review with regards to Kavanagh’s records in his papers.

But we do know they’ll come back in session in August. The hearings will likely now begin in September rather than the end of August. With a confirmation date expected.

Now probably shortly after the Supreme Court term begins the first Monday in October. As opposed to as I was hoping before that first Monday in October.

But nevertheless, it should be very soon. My prediction is after the Supreme Court begins its term in October.

Rick:

As more and more of Kavanagh’s record and decisions in the past come to light. And people start to talk about him. I mean what has your feelings been as you’ve watched that unfold? Do you think mostly good there?

Is It Mostly Good?

Matt:

I think it’s mostly good. Certainly I think Democrats are wanting to stall. And they’re wanting to have millions of pages of records. Regarding his time when he was working as the special counsel office with Ken Starr. During the whole process when they were investigating the Clinton administration.

I think some of that is just completely irrelevant. He’s already handed over more documents than any other judicial nominee in the history of America. So I think that the Democrats want to stall. I don’t think that’s going to happen.

I don’t think the Senate is going to allow this thing to drag on. They want to have him confirmed before the court has too much time after it began.

They wanted to originally have it confirmed before the session began. But I think now their projection is right after the session begins. Should be the final confirmation vote.

But we can’t take it for granted. Because we can’t lose any of the votes on this particular one. It’s very slim margin with the division between Republicans and Democrats.

Contact Your US Senator

Rick:

As far as helping as citizens out there listening. I mean I guess the one thing to do is call your U.S. senator and encourage them to support the approval.

Matt:

Absolutely. I think you need to contact your US senator. And ask them to support Kavanaugh’s nomination. I think this is a critical position.

Because it will replace a swing vote that was swinging the wrong way on abortion and same sex marriage. So that is critical and that’s why this is such a big battle for the future of America.

Rick:

Well you predicted my last question. How this would change things if approved. Kennedy obviously being on the wrong side of a lot of this. She was on the right side of some during his tenure and definitely the swing vote.

Do you think Kavanagh is definitely more constitutional and originalist than Kennedy was? And then how do you think he stacks up to the remaining justices in that light?

Kavanaugh Is In The Same Category As Gorsuch

Matt:

I mean clearly Kavanaugh is more constitutional and adhering to the constitutional text than Kennedy was. Particularly on the issue of the LGBT or abortion issues. That’s where Kennedy really went awry.

Because he allowed his personal beliefs to get in front of the constitutional text. I don’t think Kavanaugh is of that same mindset. I think he’s going to be someone that will adhere to the role of a judge. To interpret not make the law.

As it relates to how he stacks up with the others. I think he is probably somewhere in between or right there with, Thomas and Gorsuch. So he’s in that same category I think.

I think certainly Gorsuch is perhaps the gold standard. And Thomas is right there with him. I think that Kavanaugh is going to be in that similar category.

Rick:

All right Matt Staver prediction here, will Roberts be the new Kennedy? Will he be the new swing vote?

Will Roberts Be The New Kennedy?

Matt:

That’s the real question right there. Because Roberts has already been a critical swing vote on some issues. Like for example, Obamacare. And he swung the wrong way.

Unfortunately, I think sometimes these justices like Kennedy and then we saw before that O’Connor when they get in this position where they can switch the court one way or another it sometimes can go to their head.

Rick:

Yeah

Matt:

And that ultimately is their so-called legacy. I pray that that’s not going to be where Roberts stands. Roberts is not the same constitutionalist as some of the others. He certainly comes down the right way on many cases.

But in some situations he flips the wrong way. So he’s not going to be in the same category as Gorsuch. And they think he is more prone to be that swing vote. We just pray that that doesn’t happen.

Because when these issues come up again like abortion. And certainly that will come up and same sex marriage. We need all five of those judges or justices to vote consistent with the Constitution. At least on the marriage issue.

Roberts was very clear that that was not part of the constitutional text. We just pray that he’ll continue to go that way. All indications are that he certainly would. It would be a complete night and day switch for him to not endorse what he ultimately put in dissent in the same sex marriage case.

Prayer Works

Rick:

Well, you said it right. We got to pray for these things as well. Certainly pray for confirmation. Pray for or even as these cases come before them the discussions behind the scenes. The research of the clerks. I mean all that. When we pray for all of that to be headed in there in the right direction.

Matt Staver, thank you for keeping an eye on these things. Thanks for sharing with our listeners. We appreciate you and Liberty Counsel. All that you do and certainly appreciate your time coming on today.

Matt:

Thank you my pleasure to be with you.

Rick:

www.lc.org is the Web site. We’ll have a link for you at WallBuildersLive.com. That was Matt Staver. Stay with us. We’ll be right back with David and Tim Barton.

Moment From America’s History

David:

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Rick:

We’re back on WallBuilders Live! Thanks for staying with us. A special thanks to Matt Staver for joining us today as well. We’re back with David and Tim.

Guys, I see we can echo his thoughts. I mean we all have the same sort of lay of the land on where he’ll fall within the court if he is approved. Do you think that means Roberts is then kind of the swing vote?

Will Justice Roberts Be On The Right Side?

Tim:

Yeah, that was a really interesting point Rick that you brought up. Because when Roberts actually… Interesting if people remember back to when Obamacare became recognized as a law. Because the U.S. Supreme Court said right.

Roberts said no this can be recognized as a tax. Therefore it’s constitutional and therefore it can be enacted. What’s interesting is that Roberts was on the other side. And he had written a decision where he explained why it was wrong.

And then somewhere after he had written the decision before the decision was released. He had switched sides and came out and actually was in favor. And so he wrote the winning decision.

But I really appreciated the justices who were opposing it. Who said no we’re going to let Justice Roberts argue both sides on this one. We’re letting his words for why it’s wrong stay here.

And to me that was really that revelation of oh my gosh we have another Kennedy up there. Who is going to be squishy on these moral issues. So I think Rick it’s very insightful that as you bring up we’ve gotten rid of Kennedy.

Maybe put somebody up there who at least has better respect for boundaries of the Constitution. But Justice Roberts, although he’s certainly better on a lot of issues than Kennedy was. Doesn’t lend a great confidence that he will consistently be on the right side of the issue. So I thought that was a great point.

David:

Yeah, that’s one of the things I’ve been talking about to guys in D.C. Because I’ve had the same concern with Roberts for a year or two. Would he become the next Kennedy?

Roberts Is Conservative Although Not Constitutional

I think kind of what I’ve concluded is Roberts is conservative although not constitutional. And that makes him much better than Kennedy. Kennedy does not tend to be conservative or constitutional. He tends to be his own guy.

I mean early on we’ve talked about this before. But 20 years ago at the court they were calling him Flipper. Because he would change positions back and forth and he would be on both sides of the same issue. Right? And on the opposite side five years later.

And so I don’t think that Roberts is going to be like that to the same degree Kennedy was. I think he does have a much more conservative instincts. He’s done better on religious liberty. He has done better on several issues. Including morals and marriage.

But he has that kind of streak of flakiness. I don’t think it’s going to be near the same. So I think we’re in better shape.

One of the things that I really liked about what Matt said was when you ask who’s his favorite judicial figure. And he chooses Rehnquist. Man, that’s a really good choice when you choose Rehnquist.

Rehnquist was really good on Constitution. Really good on federalism. He was really good on morals and values and history. I kind of look at Clarence Thomas in the same way.

Clarence Thomas really is a really good historian. Just read his Heller decision on the Second Amendment. I mean he just unfolds history in a great way.

And so if you’re choosing Rehnquist, you’re choosing a justice who’s a good historian as well.

And hopefully that’s what Kavanaugh is. He’ll be a good historian on the court with a good sense of constitutionalism. Which Rehnquist also had. That good sense of federalism. So I think the fact that he chooses a Rehnquist is a really significant move in the right direction.

Rick:

Quick break guys. We’ll be right back with more commentary on the appointment of Kavanaugh to the U.S. Supreme Court. Stay with us folks. You are listening to WallBuilders Live!

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Rick:

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Typical Time Frame For Confirmation

Rick:

We’re back at WallBuilders Live! Thanks for staying with us. And thanks again to Matt Staver for coming out earlier in the program. David, Tim, Matt had mentioned when this appointee might finally get the approval from the Senate.

I think we did a show right after the appointment we talked about how long it had taken justices in the past to get approved. And it seemed like it was six to eight weeks. Ten weeks was reasonable in the last few administrations. That sound about right?

David:

Yeah, it was not unusual to have someone. At the point when it happened you had majority leader McConnell saying nah. I think we can get this done in about sixty to eighty days.

That’s not out of bounds. That’s right in the middle of a lot of confirmations. Some went 100 days. And some went 40 days. But 66, 70. That’s good grounds.

Rick:

Well if they do that session what happens? I mean does does Kennedy stay on the court for that?

David:

No. Kennedy will not be on the court for that. It will be just like Justice Scalia having … on the court. You now have eight on the court rather than nine.

And so you have a nominated person in process. There will be nine eventually. If Kavanaugh is turned down there’ll be another nomination. Another vote on that nomination. There’ll be cases that will be decided by eight justices.

And if you remember under Justice Scalia there were some decisions that were rendered 4 -4. They were a tie. Which means that whatever the previous decision was that the lower court is what stands. So they will have eight.

But here’s what I suspect will happen. Chief Justice Roberts, to understand kind of what a chief justice does on the Supreme Court. He doesn’t get any greater vote than anyone else. He only gets one vote out of the nine.

So he didn’t have any greater clout. But what he is he’s kind of like the engineer that runs a train. And maybe the analogy is to say he’s kind of like the speaker of the house. Or he’s kind of like the majority leader of the Senate.

He can set the administrative policies and he can also set the time schedule. The time calendar. And so although he can’t control the votes and he can’t shut the court down or open it up. That’s done by law. He can control a lot of things.

What Will Justice Roberts Next Move Be?

So he says OK I’m looking ahead. I’m Chief Justice Roberts. And I think it’s going to be three weeks before I get my new justice on the court. So what we’ll do in the first three weeks. I’m going to have the court look at cases that I think will be decided 7- 2 or 6 -3 or 8-1.

We’ll look at things that I think we’ll have no clear hard decisions on. Maybe we’ll look at some administrative law cases. Where we are fighting over whether it should be 30 days or 45 days on the outcome for bankruptcy. Something like that.

But anything that has a major constitutional question, I think he will schedule for later in the session. When he knows that there will be a ninth justice there. And when he knows that at that point in time we’ll get the briefing for all nine justices.

We’ll have the oral arguments with all nine justices. And that’s what I would expect to happen. So I don’t think it’s necessarily that big a deal. That it’s going to be a week or two or three weeks into the term before Justice Kavanaugh is seated.

I think Justice Roberts will probably anticipate that. And probably lined the schedule in such a way that the votes they have on the cases and with their vote on *** etc. I think he’ll probably control those votes in such a way that it won’t be substantive issues.

Rick:

All right well that makes sense to me. It looks like we’re going to see all this unfold over the next few weeks. It is a seat change at the court and of course the next potential appointment will be an even greater seat change. At that point you can end up with a 6 -3 on most decisions. We’ll keep our eyes open for that.

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WALLBUILDERS LIVE! with David Barton, Tim Barton and Rick Green is a daily journey into the past to capture the ideas of the Founding Fathers of America and then apply them to the major issues of today. Featured guests will include Congressmen, Senators, and other elected officials, as well as experts, activists, authors, and commentators on a variety of issues facing America.